Smith v. Conrad

23 Or. 206 | Or. | 1892

Bean, J.

The plaintiff in this proceeding was duly served with a copy of a writ of attachment in an action at law in a justice’s court, together with a notice specifying that all money or other property in his possession or under his control belonging to the defendant in the action was attached; and his. certificate in response thereto, being unsatisfactory to the plaintiff, he was ordered and required by the court to appear before it on the ninth day of September, 1891, and be examined on oath concerning the same. On the fifth of the same month,'— four days before the time fixed in the order, — he appeared in court, and as disclosed by the return to the writ of review, stated that he wanted to go to trial, and waived the service of allegations and interrogatories; whereupon (the plaintiff in the case consenting) the court proceeded to hear “the testimony of the parties” without allegations, or interrogatories, or pleadings of any kind, and adjudged and determined that the garnishee had “in his possession and under his control the sum of two hun-. dred dollars belonging to the execution creditor,” and entered a judgment against him and in favor of plaintiffs in the action for that amount. He afterwards sued out a writ of review to the circuit court, upon which the proceedings in the justice’s court were vacated and annulled, and hence this appeal.

The only question for our consideration is, whether a valid judgment can be had against a garnishee without the allegations, provided for in section 164 of the Code. The proceedings are purely statutory, and the liabilities imposed and rights secured by the process of garnish-' ment are regulated entirely by the statute, and to that we must look for the solution of the question before us. The statutes of the several states differ so radically in the mode of procedure that but little light is thrown upon this question by the decisions in other states. It is, however, generally agreed, whatever the method of procedure provided by statute, that the process of garnishment is. in effect an action or suit by the plaintiff in the principal action against the garnishee to enforce a liability existing against him and in favor of the defendant: Wapies on Attachment, 343, et seg, • and the issue between the plaintiff and garnishee must be presented to the court for its determination in the manner provided by statute: 2 Wade on Attachment, § 364.

In Case v. Noyes, 16 Or. 329 (19 Pac. Rep. 104), and 539 (21 Pac. Rep. 46), this court, at considerable length and with much care, examined and considered the various provisions of our statute on the subject of garnishment, and the office to be performed by the allegations, and it was there held that after a garnishee had been required to appear and answer before the day fixed for that purpose, or within a time specified in the order, the plaintiff is bound to serve upon him written allegations and interrogatories, and without such allegations there is no foundation for any further proceedings against such garnishee. Strahan, J., said at page 332: “Under the Code, the plaintiff in the original action becomes by the process of garnishment a plaintiff or actor against the garnishee. If the certificate which the garnishee is required to give proves unsatisfactory to the plaintiff, thereafter the proceedings are in the nature of an action, and strictly adversary. The allegations provided by the Code are designed to enable the plaintiff to bring upon the record the cause of action which the original defendant had against the garnishee, and to which the plaintiff has become subrogated by virtue of the attachment. * * * In this case no allegations whatever were served or filed. This essential and fundamental requirement could not be omitted or neglected by the plaintiff. Without such allegations there is nothing in the case requiring an answer from the garnishee or upon which a judgment could be rendered against him. ” See also Dawson v. Maria, 15 Or. 556 (16 Pac. Rep. 413), in which the allegations in a garnishee proceeding were treated as a complaint, and a judgment ordered against the garnishee because of an insufficient answer.

It thus appears that such allegations perform the office and are in the nature of a complaint on a cause of action which exists in favor of the defendant in the original action and against the garnishee, and tender to him the only issues he is required to answer, or that the court is authorized to try. All proceedings prior to such allegations are but preliminary steps leading up to the formation of an issue between the plaintiff and garnishee for trial by the court. By the service on the garnishee of a copy of the writ of attachment and notice, as provided, by law, the plaintiff obtains the right, if the certificate is unsatisfactory, to maintain an action against him upon a liability existing in favor of the defendant in the original action. He thereby becomes, as it were, subrogated to the rights of action which the defendant has against the garnishee, and entitled to sue thereon in his own name; but this action is not commenced until the service of the allegations. By the service of the order of the court requiring the garnishee to appear and answer at a specified time and place, jurisdiction of his person is obtained; but without the filing of the allegations the court does not obtain jurisdiction of the subject matter, and there is nothing for the garnishee to answer, and no question for the court to determine. It follows that no waiver by the garnishee of the allegations can confer jurisdiction upon the court any more than a waiver of a complaint in an ordinary action can do so. Before the jurisdiction of a court over the subject matter can be said to exist, it must appear that a complaint, or what stands in its place, has been submitted, invoking the action of the court upon a matter within the scope of its jurisdiction as conferred by law: 1 Freeman on Judgments, §§ 113, 119; Garretson v. Hays, 70 Iowa, 19 (29 N. W. Rep 786); Jordan v. Brown, 71 Iowa, 421 (32 N. W. Rep. 450).

No such procedure having been adopted or followed in this case, it results that the judgment of the justice’s court is void, and this case is affirmed.